Businesses, universities, and organizations generally create speech codes. Speech codes prevent employees, members, and students from engaging in any speech that is found to be offensive and or discriminatory. Sure, businesses, universities, and organizations have the right to create an environment that is friendly and one that will enable them to expand and grow. But there is a fine line between what one may find as offensive and what is protected under the Constitution’s first amendment “freedom of speech”. In 1989, a federal district court, in Doe v. University of Michigan, claimed the school could not enforce speech codes trying to prohibit hate speech. However, in 2007, in Morse v. Frederick, the Supreme Court ruled the first amendment does not prevent educators from suppressing student speech. In this case, however, the student’s speech was promoting an illegal activity: drug use.
Over the years freedom of speech has been expanded by the Supreme Court to include freedom of expression. In Schacht v. U.S. (1970), Spence v. Washington (1974), and Texas v. Johnson (1990), the Supreme Court upheld that flag burning, flag alteration, and anti-war skits were all protected under the first amendment. When polled, a majority of Americans found these acts of expression as offensive. But offensive statements and acts does not make them illegal. More recently, in Citizens United v. the Federal Election Committee, the Supreme Court ruled that organizations and corporations campaign contributions could not be limited. The left argued that money is not free speech. But money contributions can certainly be seen as freedom of expression.
Many expect the Supreme Court to side with Phelps in Snyder v. Phelps. Fred Phelps is the pastor at Westboro Baptist Church and he and his congregation routinely protest at military funerals where they chant and display hateful and offensive signs. But as despicable as this behavior may seem, Phelps certainly seems to be protected by the first amendment.
With the inception of the internet the federal government has created several laws to try to protect children from harmful and obscene content. This may seem reasonable, but in Reno v. ACLU (1997), the Supreme Court said the government’s “Communications Decency Act (CDA)” was unconstitutional. The federal government did not give up. In Ashcroft v. ACLU I (2002) and Ashcroft v. ACLU II (2004), the Supreme Court found the “Child Online Protection Act (COPA)” unconstitutional.
What is causing all this fuss over the first amendment, especially in recent years? Political correctness! Simply put, Americans are becoming overly sensitive to the words and actions of others. So, to some, the solution is to silence any potentially offensive language. This is also part of the new generation of narcissistic Americans, who believe everything is about them and their feelings. Americans can no longer debate and engage in intelligent dialogue about questionable words and actions, instead we say “we are offended” and report the behavior to the speech police. It is gotten so bad people are being fired because they commented on an episode of Seinfeld. If Seinfeld is protected by the first amendment, shouldn’t the employee be as well? People no longer have the ability to ignore statements they may find offensive. The old saying “sticks and stones may break my bones but names will never hurt me” has no meaning in our narcissistic society.
The Supreme Court rulings to date have been somewhat contradictory, but it seems they will protect all forms of free speech, regardless of how offensive, as long as it does not promote illegal activity, break the law, or incite violence. In other words, it is okay to use discriminatory language as long you do not discriminate, but much of this is still open to the opinions of the nine men sitting on the Supreme Court. It could be, in their opinion, that Fred Phelps and his followers are inciting violence. A person preaching hate may or may not be inciting violence – each person will have their own unique view. And in the CDA and COPA rulings the Supreme Court protected free speech over potential child pornography activity. So the fine line between legal and illegal free speech is ambiguous.
Speech Codes and suppressing speech does not solve any problems. It does not end hate, bigotry, or discrimination, it attempts to hide it. If we want to defeat hate, bigotry, and discrimination we need to expose it and defeat it using rational and peaceful arguments. Speech code enforcement is also subject to a wide spectrum of opinions that may turn a seemingly innocent statement into a national calamity. The “Water Buffalo” case at the University of Pennsylvania is a classic example where a seemingly innocent insult was turned into a race discrimination case.
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